FILED

United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS March 10, 2009

TENTH CIRCUIT
__________________________

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 08-2215
(D.Ct. No. 1:08-CR-00587-JCH-1)
(D. N.M.)

v.
HUGO ORNELAS-BURROLA,

Defendant-Appellant.
____________________________
ORDER AND JUDGMENT *

Before BARRETT, ANDERSON, and BRORBY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

Appellant Hugo Ornelas-Burrola pled guilty to one count of illegal re-entry

of a deported alien in violation of 8 U.S.C. 1326(a)(1) and (2) and (b)(2). On
*

This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.

appeal, Mr. Ornelas-Burrola argues his forty-one-month sentence is substantively

unreasonable under the 18 U.S.C. 3553(a) sentencing factors because the
district court: (1) considered his eight-year-old drug conviction, even though he
no longer poses a risk of committing future drug crimes; and (2) failed to consider
uncontested evidence he planned to move his family from the United States to
Mexico to work and live on his fathers farm after his release from prison,
thereby establishing he posed no risk of re-entry into the United States. We
exercise jurisdiction pursuant to 18 U.S.C. 3742(a) and 28 U.S.C. 1291 and
affirm Mr. Ornelas-Burrolas sentence.

I. Procedural Background
On April 28, 2008, Mr. Ornelas-Burrola pled guilty to one count of illegal
re-entry of a deported alien, in violation of 8 U.S.C. 1326(a)(1) and (2) and
(b)(2), without benefit of a formal plea agreement. Following his guilty plea, a
probation officer prepared a presentence report calculating his sentence under the
applicable 2007 United States Sentencing Guidelines (Guidelines or
U.S.S.G.). The probation officer set Mr. Ornelas-Burrolas base offense level
at eight, pursuant to U.S.S.G. 2L1.2(a), and increased his base level sixteen
levels, pursuant to 2L1.2(b)(1)(A)(i), because he had previously been deported
following his 2001 felony convictions on four counts of trafficking in a controlled
substance cocaine for which he received a four-year sentence on each count,
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to run concurrently. In calculating Mr. Ornelas-Burrolas sentence, the probation

officer recommended a three-level offense reduction for acceptance of
responsibility, for a total offense level of twenty-one, which, together with his
criminal history category of II, resulted in a recommended Guidelines range of
forty-one to fifty-one months imprisonment. Finally, the probation officer stated
that after assessing Mr. Ornelas-Burrolas criminal and social history, no
circumstances took him out of the heartland of cases involving similarly-situated
defendants, and therefore no departure issues existed.

Mr. Ornelas-Burrola filed a sentencing memorandum requesting a variance

for a reduction of his sentence below the applicable Guidelines range, arguing a
sixteen-level enhancement was inappropriate under the sentencing factors in 18
U.S.C. 3553(a), based on both his criminal history and other personal history
and characteristics. Specifically, as to his criminal history, he argued his 2001
convictions for selling cocaine resulted from his addiction to cocaine and need to
support that addiction, and that he had overcome his addiction and had no other
criminal convictions, other than an unresolved charge for driving while under the
influence following his arrest in January 2008. Based on these circumstances, he
asserted his criminal history category of II did not represent an accurate
assessment of his recidivism or the need for deterrence, and that a criminal
history category of I would better serve the sentencing purposes of 18 U.S.C.
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 3553(a). With regard to his family circumstances, he explained he was working

to provide support for his family before returning to the United States and
returned to be with his wife and seven-year-old daughter, who is a United States
citizen. Mr. Ornelas-Burrola argued his motive in returning to the United
States should significantly reduce his sentence for his instant offense of illegal reentry. As a result, he argued, a sentence of forty-one-months imprisonment treats
him more harshly than his circumstances warrant and thus creates an
unwarranted disparity between his sentence and the sentence[s] of others who
actually receive the lower sentence[s] their similar circumstances justify. R.,
Vol. 1 at 19.

The government prepared a response in opposition to Mr. Ornelas-Burrolas

request, pointing out that even though his prior four drug trafficking offenses
were brought in two separate cases, he was only assessed three criminal history
points. It also noted that in January 2008 he was arrested using one of his three
aliases and has pending charges for driving under the influence; resisting,
evading, or obstructing an officer; concealing identification; and driving without
a license. In addition, it pointed out his prior incarceration and entanglements
with immigration officials and the criminal justice system did not deter him from
returning to the United States and that most defendants charged with illegally reentering the United States could make similar arguments that they returned to the
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United States to help support their families.

At the sentencing hearing, Mr. Ornelas-Burrolas counsel advised the

district court that Mr. Ornelas-Burrola had no objection to the factual findings in
the presentence report but was continuing to seek a lower sentence, as previously
requested. After hearing the parties arguments on the appropriate sentence, the
district court stated it had reviewed the unopposed presentence report factual
findings; Mr. Ornelas-Burrolas request for a lower sentence and the
governments response thereto; and a number of letters provided in support of Mr.
Ornelas-Burrola, and that it had also considered the advisory Guidelines
applications and the factors set forth in 18 U.S.C. 3553(a). It then explained
that it did not believe Mr. Ornelas-Burrolas criminal history was overstated and
that, even taking into consideration his history and characteristics, it simply could
not ignore the 2001 trafficking convictions, which it considered very serious and
warranted a sentence within the advisory Guidelines range in conjunction with the
3553(a) sentencing factors. It further stated it believed a sentence of forty-one
months was sufficient and not greater than necessary to accomplish the goals of
sentencing, after reviewing the other 3553(a) factors and considering the fact
Mr. Ornelas-Burrolas illegal re-entry occurred after having been previously
convicted of a felony. The district court then sentenced Mr. Ornelas-Burrola at
the low end of the Guidelines range to forty-one months imprisonment and two
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years supervised release.

II. Discussion
On appeal, Mr. Ornelas-Burrola argues his forty-one-month sentence is
substantively unreasonable under the 18 U.S.C. 3553(a) sentencing factors
because the district court: (1) considered his eight-year-old drug conviction, even
though he no longer poses a risk of committing future drug crimes; and (2) failed
to consider uncontested evidence he planned to move his family from the United
States to Mexico to work and live on his fathers farm on his release from prison,
thereby establishing he posed no risk of re-entry into the United States.

Our appellate review for reasonableness includes both a procedural

component, encompassing the method by which a sentence was calculated, as well
as a substantive component, which relates to the length of the resulting sentence.
United States v. Smart, 518 F.3d 800, 803 (10 th Cir. 2008). A challenge to the
sufficiency of the 3553(a) justifications relied on by the district court implicates
the substantive reasonableness of the resulting sentence. Id. at 804. In
reviewing a sentence for substantive reasonableness, we give deference to the
district court under an abuse of discretion standard. See id. at 805-06. If the
sentence is within the correctly-calculated Guidelines range, we may apply a
presumption of reasonableness. See United States v. Kristl, 437 F.3d 1050, 1053-

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55 (10 th Cir. 2006) (per curiam). A defendant may rebut this presumption by
demonstrating the sentence is unreasonable when viewed under the 3553(a)
factors. Id. at 1054-55.

In this case, Mr. Ornelas-Burrola does not dispute that the district court
correctly calculated and applied the relevant Guidelines range and sentenced him
within that range. Therefore, his sentence is presumptively reasonable. Mr.
Ornelas-Burrola must rebut this presumption by demonstrating his sentence is
unreasonable in light of the sentencing factors in 3553(a). However, for the
same reason cited by the district court, Mr. Ornelas-Burrola has not demonstrated
the district court abused its discretion in considering his prior drug trafficking
convictions in sentencing him within the applicable Guidelines range. Drug
trafficking is indeed a very serious offense, and, consequently, we cannot say the
district court abused its discretion in considering it in assessing the length of Mr.
Ornelas-Burrolas sentence. In addition, Mr. Ornelas-Burrolas arguments
concerning his family circumstances and risk of re-entry are not sufficiently
compelling for the purpose of making his forty-one-month sentence unreasonable.
Thus, we conclude the district court did not abuse its discretion in imposing a
sentence at the bottom of the applicable Guidelines range, and Mr. OrnelasBurrola has not demonstrated, as required, that his sentence is substantively
unreasonable under the 3553(a) factors.
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III. Conclusion
For these reasons, we AFFIRM Mr. Ornelas-Burrolas sentence.
Entered by the Court:
WADE BRORBY
United States Circuit Judge

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